A key principle for the era of Francis and Trump: rulers are not above the law

The Church is not a democracy in the usual sense, but it is a society governed by law

The workings of the law, and canon law in particular, are not the most exciting of subjects, and yet they are important. Right now, in America, thousands of lawyers are no doubt hard at work trying to find ways of overturning President Trump’s Executive Order (the “travel ban”) or at least mitigating its effects. They are doing this because America is a democracy where there is rule of law, and even the Chief Executive has to abide by the law. It is the law that is supreme, not the whim of the ruler. For the ruler’s will to be put into effect it has to be in accord with the law.

This idea is not new. It goes back at least to the time of St Thomas Aquinas, who defined law as an ordinance of reason, made for the common good by him who has care of the community, and promulgated. It is useful to note, then, that an ordinance that is unreasonable, or which is not for the common good, or which is not made by the legitimate authority, or not promulgated, has no force. If Mr Trump’s Executive Order can be shown to be against the common good, or simply irrational, then all should resist it.

The Church is not a democracy in the usual sense, but it is a society that is governed by law. The actions of all prelates, whether they be bishop or Pope, are governed by procedures laid down in Canon Law. They cannot make it up as they go along, or make decrees that spring from personal whim. They have to follow certain procedures for their acts of government to be binding. The Pope is a ruler, not a dictator; his powers are huge, but they are not unfettered. And the same goes for Mr Trump; he has to rule according to the Constitution of the United States; the Pope has to rule in accordance with the laws of the Church. Trump is the servant, in some ways, of the Constitution; the Pope is the servant of the Magisterium and also the servant of the Gospel.

This is one of the reasons why so many people are worried about the recent happenings with the Order of Malta. Never mind the reasons for the Pope’s actions – it is the how that is concerning. Has the Pope acted within the limits imposed by law, or has he set law aside? I have no idea on this matter, particularly given that the law involved is not just Canon Law, but international law governing the relations between states. That is not something I know enough about; but those who do, such as Kurt Martens, professor of Canon Law at the Catholic University of America, are worried.

The professor says what others have said: in interfering with a sovereign entity such as the Knights of Malta, the Vatican sets a dangerous precedent: one day someone may violate the Vatican’s sovereignty in the same way. It is by no means impossible; after all the Vatican uses its status in international law in a variety of ways, not least to give diplomatic immunity to many of its personnel, and also to give it the status of a tax haven. These rights could be infringed. And who would stand up for the Vatican then?

But there is something else that should concerns us here, which goes beyond the mere question of procedure. The Executive Order, and the act annulling all acts of Grand Master Festing, have something in common. They both smack of personal rule. As Louis XIV is supposed to have said: “It is legal simply because I wish it.” Rule by decree does not sit well in the modern world; it arouses fear; after all, what is to protect us all from decrees that might harm us?

Indeed this tendency to personal rule leads another American professor to ask whether Donald Trump and the Pope are not in fact the same person. He is not entirely joking. Professor Alan Jacobs is surely right to warn us that we are entering an era of authoritarian populism.

This concept of personal rule also impinges on the field of doctrine. In the Maltese Islands both Bishop Mario Grech and Archbishop Scicluna have defended their recent Criteria about the implementation of Amoris Laetitia through an appeal to Papal authority, as opposed to an appeal to the authority of the Magisterium. As Fr Mark Drew has pointed out, this represents a return to Ultramontanism.

This idea, which is a caricature of Papal authority properly understood, has proved very damaging in the past. Let’s remember that non-Catholic Christians might one day accept the Petrine ministry, but they will never ever accept its deformed and illegitimate offspring, Ultramontanism.

As a useful antidote to the temptation to Ultramontanism, let us remember these wise words, from Pope Benedict XVI, from 7th May 2005, in his first sermon at the Lateran, his Cathedral:

“The power that Christ conferred upon Peter and his Successors is, in an absolute sense, a mandate to serve. The power of teaching in the Church involves a commitment to the service of obedience to the faith. The Pope is not an absolute monarch whose thoughts and desires are law. On the contrary: the Pope’s ministry is a guarantee of obedience to Christ and to his Word. He must not proclaim his own ideas, but rather constantly bind himself and the Church to obedience to God’s Word, in the face of every attempt to adapt it or water it down, and every form of opportunism.”